Australia: Defamation using hyperlinks – To link or not to link – Take Care - Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350

The Supreme Court (Beech-Jones J) has

• upheld a claim for defamation brought by the Plaintiff, Mr Timothy Vissher against the Maritime Union of Australia (MUA); and
• confirmed the Australian approach to liability for defamation in relation to hyperlinked material posted on a website.

In February 2011 during Cyclone Dianne, Mr Visscher, who was commanding an ocean tugboat the Hako Esteem, made the decision to anchor it at Shark Bay in the face of the cyclone. The MUA published an article on its website expressing concerns about this decision of Mr Visscher. MUA's article contained a hyperlink to another article in the Cootamundra Herald which expanded on the concerns raised by MUA. The Herald article was found to have contained defamatory imputations.

MUA admitted that it had published its article on the website, but it denied that its posting of the hyperlink to the Cootamundra Herald article constituted publication of the Cootamundra Herald article.

Counsel for MUA cited the Canadian authority of Crookes v Newtown [2011] 3 SCR 269 in which the majority of the Court construed hyperlinks as being a reference to the existence and/or location of content rather than a publication of that content.

The Supreme Court in this case disagreed with MUA's argument because:

• It doubted that MUA could sustain an argument that it had not endorsed the content of the hyperlink.
• The Canadian decision was informed by the Canadian Charter of Rights and Freedoms which had no equivalent in Australia.
• UK and Australian case law reveals that the relevant approach aligns with that expressed by Hunt J in Urbanchich v Drummoyne Municipal Council [1991] Aust Torts Reports 81-127 where a defendant might be found liable for the publication of someone else's defamatory material which was physically attached to the defendant's property if the defendant was aware of the presence of the defamatory material on their property and refused to remove it and the refusal to remove would indicate consent, approval or ratification of the defamatory content.

Applying Urbanchich the Court held that publication through a hyperlink had occurred, and that, the MUA had accepted responsibility for the continued linked publication of the Cootamundra Herald article and (at the very least), adoption or promotion of the content.

This case provides a sobering warning to take care when hyperlinking to content posted on the web and be aware that hyperlinked content can be updated by third parties at anytime placing you as the publisher in an invidious position.

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